Citation Nr: 1829783	
Decision Date: 08/13/18    Archive Date: 08/17/18

DOCKET NO.  14-39 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to a compensable evaluation for post surgical excision of left testicle seminoma with chemotherapy.

3. Propriety of the reduction of the rating for limitation of flexion of the left leg and myositis of the left vastus lateralis muscle from a 10 percent to a 0 percent evaluation.

4. Entitlement to service connection for low back pain.

5. Entitlement to service connection for sleep apnea.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 2008 to August 2012 in the United States Marine Corps.

These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2012 and a February 2014 rating decisions issued by the Department of Veterans Affairs (VA).

The issue(s) of entitlement to service connection for low back pain and for sleep apnea are being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran does not have a hearing loss disability for VA purposes.

2. The Veteran does not manifest with a malignant neoplasm of the genitourinary system and the excision of a testicular mass did not involve the removal of a testis.

3. Since January 23, 2014, the Veteran's myositis of the left vastus muscle manifested with normal stability. His chondromalacia patella was shown to be the source of the Veteran's painful limited motion in his left knee.




CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.303, 4.85, 4.86, Diagnostic Code 6100.

2. The criteria for a compensable evaluation for post-surgical excision of left testicle seminoma with chemotherapy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.31, 4.115b, Diagnostic Code (DC) 7528.

3. The criteria for restoration of a 10 percent disability rating for limitation of flexion of the left leg and myositis of the left vastus lateralis muscle since January 23, 2014 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.13, DC 5021.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Hearing Loss Disability 

The Veteran seeks entitlement to service-connection for a bilateral hearing loss disability. See February 2014 VA Form 21-0958.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

VA records show the Veteran underwent audiometric testing for hearing loss in December 2013. See December 2013 VA Examination. Puretone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
15
10
LEFT
10
10
5
10
15

Speech audiometry revealed speech discrimination ability of 100 percent in the right ear and 100 percent in the left ear. 

These results do not show a disability in accordance with 38 C.F.R. § 3.385.  Without a current hearing loss disability, the Veteran is not entitled to service connection. Should the Veteran's hearing worsen, he is certainly free to reapply in the future.  

II.	Increased Ratings

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DC) identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

Post-surgical excision of left testicle seminoma with chemotherapy

The Veteran contends that he is entitled to a compensable rating for post-surgical excision of left seminoma. He has claimed stomach pain, left groin/thigh pain, and right testicle pain as associated with the disability. He is currently assigned a noncompensable (0%) rating since August 31, 2012. He receives special monthly compensation for loss of a creative organ as per 38 U.S.C. 1114, subsection (k) and 38 C.F.R. 3.350(a) since August 31, 2012.

Malignant neoplasms of the genitourinary system are evaluated under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Under Diagnostic Code 7528, a 100 percent evaluation is assigned for malignant neoplasms of the genitourinary system. A Note following Diagnostic Code 7528 provides that following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent will continue with a mandatory VA examination at the expiration of six months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals. 38 C.F.R. § 4.115b, Diagnostic Code 7528. Removal of one testis will result in a noncompensable rating. Removal of both testes will result in a 30 percent evaluation. C.F.R. § 4.115b, Diagnostic Code 7524.

The Veteran was afforded a Physical Evaluation Board proceeding after being treated for a testicular neoplasm in service, characterized as a malignant germinoma seminoma. See June 2012 Physical Evaluation Board Proceedings. The medical officer found that the Veteran was unfit for duty due to his testicular neoplasm. The Veteran was discharged in August 2012 due to the genitourinary disability.

After separation, the Veteran continued post-surgical treatments for his testicular neoplasm. He continued to report pain at the site of the incision radiating to his stomach, left groin/thigh, and right testicle. Laboratory tests confirmed there was no recurrence of cancer after surgical intervention.

The Veteran was afforded a general VA examination in April 2012. Review of the Veteran's genitourinary system revealed that the Veteran's testes descended bilaterally, no scrotal masses were noted, and a normal epididymis with cremasteric reflex was found. There was no evidence of a removal of a testicle; rather, a testicular "mass" was noted to have been removed during surgery.

The Board finds that the evidence of record does not support a compensable evaluation for post-surgical excision of left testicle seminoma with chemotherapy. While a mass was removed from the testicular region, both of the Veteran's testes were preserved. In order for the Veteran to receive a compensable rating for removal of the testes under DC 7524, removal of both testes must be present. The Veteran has not had either of his testes removed and does not have a current malignant neoplasm of the genitourinary system; as such, a compensable rating for a genitourinary or testicular disability is not warranted.

III. Rating reductions

Reduction of rating for limitation of flexion of the left leg and myositis of the left vastus lateralis muscle

Prior to the rating reduction at issue, the Veteran was assigned a 10 percent rating for limitation of flexion of the left leg and myositis of the left vastus lateralis muscle. DC 5021. The RO's February 2014 rating decision decreased the Veteran's evaluation for limitation of flexion of the left leg and myositis of the left vastus lateralis muscle from 10 percent to 0 percent disabling, effective January 23, 2014. While the issue of chondromalacia patellae of the left knee is not currently on appeal, it has been rated as 10 percent disabling due to painful motion since August 31, 2012.

The Veteran's left knee disability is rated under DC 5021, which addresses range of motion, instability, and ankylosis of the knee.

In a rating reduction case, VA has the burden of establishing that the disability has improved. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).

Under 38 CFR 3.105 (e) (2017), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

The RO has rated the Veteran's myositis of the left vastus lateralis muscle as noncompensable. See February 2014 Rating Decision. Initially, based on an April 2012 VA examination, the Veteran's left knee was found to manifest with pain on motion and instability. He was assigned a 10 percent evaluation for impairment of the left knee with myositis of the left vastus lateralis muscle and a 10 percent evaluation for chondromalacia patellae of the left knee.

In a January 2014 VA examination, the examiner diagnosed onlywith chondromalacia patellae of the left knee. The Veteran's vastus lateralis muscle had improved with no pain or instability noted in the muscle. While pain in the left knee was present, it was localized to the medial joint line and the retropatellar component of the left knee. No locking, swelling, or flare-ups were noted. Functionally, the Veteran manifested with pain on motion in the left knee and less movement than normal.

The Board finds that the rating reduction for his myositis of the left vastus lateralis muscle is warranted. The Veteran was notified of the rating reduction in a February 2014 rating decision and an October 2014 SOC. He was notified of the decision and asked to supply additional evidence supporting the preservation of his 10 percent evaluation for a left vastus lateralis muscle disability. As such, the Board finds that the procedural requirements under 38 CFR 3.105 (e) (2017) have been met. 

Additionally, the medical evidence shows that while the Veteran continues to exhibit pain on motion in his left knee, it is attributable to his chondromalacia patellae, for which he is evaluated as 10 percent disabling based on painful motion. The Veteran's myositis of the left vastus lateralis muscle has improved and he no longer exhibits instability in the left knee.

The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Without left knee instability in the Veteran's left vastus lateralis muscle and pain on motion being specifically attributed to the Veteran's chondromalacia patellae, the Board finds that the Veteran's left vastus lateralis muscle has improved and warrants a reduction to a noncompensable evaluation. As such, the rating reduction from a 10 percent evaluation to a noncompensable evaluation is proper, effective January 23, 2014.


ORDER

Service connection for bilateral hearing loss is denied.

A compensable evaluation for post-surgical excision of left testicle seminoma with chemotherapy is denied.

The reduction in the rating for service connected left vastus lateralis muscle from 10 percent disabling to a noncompensable evaluation was proper.

REMAND

Unfortunately, the Veteran's claims regarding entitlement service connection for the following: 1) sleep apnea, and 2) low back pain, must be REMANDED for further development.

VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Board notes that in Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (Fed. Cir. 2018) the Court held that pain can constitute disability if it results in functional impairment. The Board finds that a medical examination and etiology opinion of the Veteran's thoracolumbar spine is needed to adequately assess the Veteran's symptoms of pain associated with his back and his legs, which he reports have been present since service.

Additionally, the Veteran should be afforded an examination to assess his sleep difficulties reported since returning from deployment. See March 2012 Standard Form 600. He endorsed feeling tired after sleeping and only sleeps about 4 to 5 hours a night. During an April 2012 VA examination, he reported difficulties with concentration, decreased energy levels, and mood irritability due to his sleep disturbances.


Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination of his thoracolumbar spine. The examiner should provide a report that describes the nature and etiology of the Veteran's back condition, to include his manifestations of pain and its functional limitations. The examiner should opine if it is at least as likely as not that the Veteran's back current pain is at least as likely as not caused or aggravated by his military service. If such an opinion is not possible without resorting to speculation, the examiner should explain why.

2. Schedule the Veteran for a VA sleep-study, or analogous examination of the nasopharynx sinus region, to assess the Veteran's reported sleep apnea symptoms. The examiner should opine if it is at least as likely as not that the Veteran's sleep disturbances are attributable to a sleep apnea disorder, and if so, if it is at least as likely as not related to his military service.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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